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United States v. Justice

United States District Court, S.D. Ohio, Western Division

March 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TURRELL JUSTICE, Defendant.

         DECISION AND ENTRY ADOPTING IN THEIR ENTIRETIES INITIAL (DOC. #146) AND FIRST SUPPLEMENTAL (DOC. #148) REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE, AND OVERRULING DEFENDANT TURRELL JUSTICE'S OBJECTIONS THERETO (DOC. #147, 150); REJECTING SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. #152) AS TO RECOMMENDATION THAT DEFENDANT BE GRANTED A CERTIFICATE OF APPEALABILITY, ADOPTING SAID REPORT AND RECOMMENDATIONS IN ALL OTHER RESPECTS, AND SUSTAINING OBJECTIONS OF PLAINTIFF UNITED STATES OF AMERICA (DOC. #153) THERETO; DEFENDANTS MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (DOC. #144) IS DISMISSED WITH PREJUDICE; BECAUSE REASONABLE JURISTS WOULD NOT DISAGREE WITH THIS CONCLUSION, AND DEFENDANT HAS NOT MADE A SUBSTANTIAL SHOWING OF A DENIAL OF A CONSTITUTIONAL RIGHT, HE SHALL NOT BE GRANTED CERTIFICATE OF APPEALABILITY; AS ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS, DEFENDANT SHOULD NOT BE PERMITTED LEAVE TO APPEAL IN FORMA PAUPERIS; TERMINATION ENTRY

          WALTER H. RICE, JUDGE

         Defendant Turrell Justice ("Defendant" or "Justice") filed a Motion to Correct Sentence Under 28 U.S.C. § 2255 ("Motion"), arguing that, in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ("Johnson If), "[his] conviction for Use of a Firearm to Facilitate a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)[1] is no longer tenable because his conviction for Hobbs Act Robbery in violation of 18 U.S.C. § 1951 no longer qualifies as a predicate offense." Doc. #144, PAGEID #653. Therefore, he claims, his sentence should be vacated, and he should be resentenced absent the career offender provision's mandatory enhancement. Id., PAGEID #660. Pending before the Court, pursuant to Rule 72(b), are: Magistrate Judge Michael R. Merz's July 8, 2016, Report and Recommendations ("Initial Report and Recommendations"), Doc. #146; the Magistrate Judge's August 9, 2016, Supplemental Report and Recommendations ("First Supplemental Report and Recommendations"), Doc. #149; the Magistrate Judge's August 26, 2016, Second Supplemental Report and Recommendations, Doc. #152; and the Objections to said judicial filings of Justice, Doc. #147, 150, and Plaintiff, the United States of America ("the Government"). Doc. #153.

         Based on the reasoning and citations set forth in the three Reports and Recommendations, as well as upon a thorough de novo review of the parties' filings, the underlying facts and the applicable law, the Court ADOPTS in their entireties the Initial and First Supplemental Reports and Recommendations, and OVERRULES Justice's Objections thereto. The Court REJECTS the Second Report and Recommendations as to the recommendation that Justice be granted a certificate of appealability as to the constitutionality of 18 U.S.C. § 924(c)(3)(B), and otherwise ADOPTS in full the Second Supplemental Report and Recommendations. The Court SUSTAINS the Government's Objection to said judicial filing. Justice's Motion is DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with the Court's conclusion, and Justice has not made a substantial showing of a denial of any constitutional right, he is DENIED a certificate of appealability. This Court, in so doing, certifies to the U.S. Court of Appeals for the Sixth Circuit that any appeal would be objectively frivolous, and that Justice should not be granted leave to appeal in forma pauperis.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On May 12, 2010, a grand jury in the U.S. District Court for the Southern District of Ohio issued a Second Superseding Indictment ("Indictment") against Justice. Doc. #42. The Indictment charged Justice, in relevant part for this Motion, with: Conspiracy to Interfere with Commerce through Robbery ("Hobbs Act Robbery") (Count Three); and Use and Carrying of a Firearm During and in Relation to a Crime of Violence (Count Six). Id., PAGEID #159-61 (citing 18 U.S.C. §§ 924(c), 1951). On April 27, 2011, Justice entered into a plea agreement with the Government, under which he agreed to plead guilty to Counts Three and Six. Doc. #101. Because Hobbs Act Robbery constituted a predicate crime of violence under 18 U.S.C. § 924(c)(1), the Court, on November 28, 2011, sentenced Justice to eighty-four months in prison on Count Six (the mandatory minimum), to be served consecutively with his forty-one month sentence on Count Three. Doc. #136, PAGEID #630.

         On June 23, 2016, Justice filed the instant Motion. Doc. #144. Justice notes that the Supreme Court in Johnson II invalidated the "residual clause" of the Armed Career Criminal Act of 1984 ("ACCA"), because it was so vague as to violate a criminal defendant's right to due process guaranteed by the Fifth Amendment to the U.S. Constitution. Id., PAGEID #654 (citing 135 S.Ct. at 2555-56, 2558; 18 U.S.C. § 924(e)(2)(B)(ii) (which had included within the definition of "violent felony" a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another")). He argues that, for Hobbs Act Robbery to qualify as a predicate offense, it must be considered a "crime of violence" pursuant to one of the two categories set forth in 18 U.S.C. § 924(c)(3). Id. First, Hobbs Act Robbery could be considered a crime of violence if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Second, Hobbs Act Robbery could be considered a crime of violence if it is a felony offense "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B).

         Justice argues that: (1) Hobbs Act Robbery does not satisfy the strict categorical approach for what constitutes a "crime of violence" under 18 U.S.C. § 924(c)(3)(A); and (2) the above-quoted language in 18 U.S.C. § 924(c)(3)(B) is a "residual clause" that is identical in substance to the one found to be unconstitutionally vague in Johnson II. Doc. #144, PAGEID #655. Taken together, Johnson claims that there was no basis for his conviction on Count Six and sentencing under 18 U.S.C. § 924(c). Id., PAGEID #656, 659. Thus, Johnson requests that the Court vacate his sentence under Count Six "and schedule a new hearing so that he can be re-sentenced without application of the career offender provision." Id., PAGEID #660.

         On July 8, 2016, the Magistrate Judge issued his Initial Report and Recommendations, recommending that: Justice's Motion be overruled; he be denied a certificate of appealability; and the Court certify to the Sixth Circuit that any appeal would be objectively frivolous, and Justice should not be granted leave to appeal in forma pauperis. Doc. #146. Justice filed timely Objections, Doc. #147, and the matter was recommitted to the Magistrate Judge. Doc. #148. On August 9, 2016, the Magistrate Judge issued his First Supplemental Report and Recommendations, again recommending that the Motion be overruled, Justice be denied a certificate of appealability, and that Justice should not be granted leave to appeal in forma pauperis. Doc. #149. Justice again filed timely Objections, Doc. #150, and the matter was again recommitted to the Magistrate Judge. Doc. #151. On August 26, 2016, the Magistrate Judge issued his Second Supplemental Report and Recommendations, again recommending that the Motion be overruled. Doc. #152. However, he withdrew his previous recommendations that Justice be denied a certificate of appealability, and instead recommended that, because reasonable jurists could disagree with his conclusion, Justice be granted such a certificate. Id., PAGEID #704. The Government filed timely Objections to the Second Report and Recommendations as to the recommendation that a certificate of appealability be granted. Doc. #153. Justice responded to the Government's Objections regarding the certificate of appealability, but did not make any new objections himself. Doc. #154.[2]

         II. APPLICABLE LAW

         A. 28 U.S.C. § 2255

         Under 28 U.S.C. § 2255, a prisoner who was convicted of a federal crime, but who believes "that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The Court's analysis under 28 U.S.C. § 2255 is identical to its analysis of a habeas corpus petition brought under 28 U.S.C. § 2254, and a movant under 28 U.S.C. § 2255 is subject to the same burdens of proof and exhaustion requirements as a habeas corpus petitioner under 28 U.S.C. § 2254(b). If a movant fails to raise an argument for vacating or modifying a sentence that was available to him on direct appeal, then that argument has been procedurally defaulted, and he may not raise it as a ground for relief under 28 U.S.C. § 2255. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (applying Wainwright to section 2255 claim). Moreover, if a movant seeks to have his sentence vacated based on a precedential decision that was issued subsequent to the movant's sentencing, then he must bring such a claim within one year of the decision being issued. See 28 U.S.C. § 2255(f)(4) (stating that the one-year statute of limitations begins to run on "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.").

         B. Rule 72(b)

         The Magistrate Judge's Reports and Recommendations addressed the merits of Justice's Motion and the Objections thereto; thus, the Court must conduct a de novo review of "any part of the [M]agistrate [J]udge's disposition that has been properly objected to. The [Court] may accept, reject, or modify the recommended disposition; receive further evidence; ...


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